Citation Nr: 0604978
Decision Date: 02/22/06 Archive Date: 03/01/06
DOCKET NO. 04-27 415 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to an increased (compensable) disability
evaluation for hepatitis.
2. Entitlement to service connection for arthritis claimed
as secondary to the service-connected hepatitis disability.
3. Entitlement to service connection for polyps of the colon
claimed as secondary to the service-connected hepatitis
disability.
4. Entitlement to service connection for gastritis claimed
as secondary to the service-connected hepatitis disability.
5. Entitlement to service connection for glaucoma and
cataracts, also claimed as eye problems and astigmatism.
6. Entitlement to service connection for bilateral foot
problems.
7. Whether new and material evidence has been submitted to
reopen a claim of service connection for dermatophytosis
(claimed as a fungal disorder).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M. Hannan, Counsel
INTRODUCTION
The appellant served on active duty from June 1943 to
December 1945, and from October 1950 to September 1951. This
case comes before the Board of Veterans' Appeals (Board) on
appeal from a December 2002 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Nashville, Tennessee. The appellant is also appealing a
rating decision issued by the RO in March 2003.
In September 2004, the appellant submitted a written
statement in which he declared that he wanted a personal
hearing at the RO. That hearing was scheduled for November
2004, but the appellant cancelled the hearing that same
month. Therefore, as there is no outstanding hearing
request, the Board will proceed with consideration of the
issues on appeal.
In a rating issued in January 2004, the RO deferred
consideration of the appellant's claim for service connection
for a dental condition. The RO apparently has not yet issued
a rating decision on that claim. The matter is REFERRED to
the RO for appropriate action.
On February 2, 2006, a Deputy Vice Chairman of the Board
ruled favorably on the motion to advance this case on the
docket based on a finding of good cause, namely the advanced
age of the appellant. 38 C.F.R. § 20.900(c).
The appellant has expressed disagreement with a January 2004
rating decision that denied his claims for service connection
for a vision disorder and foot disorders. The claims file
does not contain any Statement of the Case (SOC) issued in
response to the appellant's February 2004 Notice of
Disagreement (NOD) (a handwritten letter from the appellant
specifically referring to the February 9, 2004 denial notice
letter). The Board must therefore remand those issues for
the issuance of an SOC. See Manlincon v. West, 12 Vet. App.
238, 240 (1999).
The eye and foot issues and the new and material evidence
issue are addressed in the REMAND portion of the decision
below and are REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The appellant's liver disease disability is manifested by
subjective complaints of feelings of fatigue and abdominal
pain and by objective clinical findings of no elevations of
liver function tests, no signs of chronic liver disease and
an abdomen without a palpable liver; the appellant has not
received any treatment for his asymptomatic liver disease.
2. The appellant's liver disease disability has not been
productive of fatigue, malaise, and anorexia, or;
incapacitating episodes having a total duration of at least
one week, but less than two weeks, during the past twelve-
month period.
3. The service-connected hepatitis disability did not cause
or worsen any arthritis.
4. The service-connected hepatitis disability did not cause
or worsen any colon polyps.
5. The service-connected hepatitis disability did not cause
or worsen any gastritis.
CONCLUSIONS OF LAW
1. The criteria for an increased (compensable) rating for
the appellant's service-connected hepatitis have not been
met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002
& Supp. 2005); 38 C.F.R. §§ 3.102, 3.321, 3.159, 4.1, 4.2,
4.7, 4.114, Diagnostic Code 7345 (2005).
2. The appellant does not have arthritis or colon polyps
and/or gastritis that are proximately due to, or the result
of, service-connected hepatitis disability. 38 U.S.C.A.
§§ 1101, 1110, 1131, 1154, 5102, 5103, 5103A, and 5107 (West
2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VA's Duty to Notify and Assist
Under the Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (2000) (VCAA), VA has specified
duties to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.
With few exceptions, the regulations implementing this law
are applicable to all claims filed on or after the date of
enactment, or filed before the date of enactment and not yet
final as of that date. VAOPGCPREC 7-2003.
The final rule implementing the VCAA was published on August
29, 2001. 66 Fed. Reg. 45,620, et seq. (Aug. 29, 2001)
(codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a)).
In this case, VA's duties have been fulfilled. VA must
notify the appellant of evidence and information necessary to
substantiate his claims and inform him whether he or VA bears
the burden of producing or obtaining that evidence or
information. 38 U.S.C.A. § 5103(a) (West 2002); 66 Fed. Reg.
45,620, 45,630 (Aug. 29, 2001) (codified as amended at
38 C.F.R. § 3.159(b)); Quartuccio v. Principi, 16 Vet. App.
183 (2002). The appellant was notified of the information
necessary to substantiate his claims by correspondence dated
in October 2002, January 2003, and November 2005; these
documents informed the appellant of VA's duty to assist and
what kinds of evidence the RO would help obtain.
In addition, in the June 2004 Statements of the Case (SOC),
the RO informed the appellant about what the evidence had to
show to establish entitlement to an increased evaluation for
hepatitis and to service connection on a secondary basis.
Therefore, VA has no outstanding duty to inform the appellant
that any additional information or evidence is needed.
Even if the appellant was not provided with all of the
required notice until after the RO had adjudicated the
appellant's claims, "the appellant [was] provided the
content-complying notice to which he [was] entitled."
Pelegrini v. Principi, 18 Vet. App. 112, 122 (2004).
Consequently, the Board does not find that any late notice
under the VCAA requires remand to the RO. Nothing about the
evidence or any response to any notification suggests that
the case must be re-adjudicated ab initio to satisfy the
requirements of the VCAA.
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A(a) (West 2002); 66 Fed. Reg. 45,620,
45,630-31 (Aug. 29, 2001) (codified as amended at 38 C.F.R.
§ 3.159(c), (d)). Here, VA arranged for an examination for
compensation purposes. Private medical records were obtained
and associated with the claims file. The appellant was
informed about the kind of evidence that was required and the
kinds of assistance that VA would provide. The appellant did
not provide any information to VA concerning available
treatment records that he wanted the RO to obtain for him
that were not obtained. The appellant was given more than
one year in which to submit evidence after the RO gave him
notification of his rights under the VCAA. Therefore, there
is no duty to assist or notify that is unmet.
All relevant facts with respect to the claims addressed in
the decision below have been properly developed. Under the
circumstances of this case, a remand would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). Mayfield v. Nicholson, 19 Vet.
App. 103 (2005).
The Merits of the Claims
In adjudicating a claim, the Board determines whether (1) the
weight of the evidence supports the claim or, (2) whether the
weight of the "positive" evidence in favor of the claim is in
relative balance with the weight of the "negative" evidence
against the claim. The appellant prevails in either event.
However, if the weight of the evidence is against the
appellant's claim, the claim must be denied. 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
I. Increased rating claim
Disability evaluations are determined by the application of
a schedule of ratings that is based upon an average
impairment of earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. Separate diagnostic codes identify the
various disabilities. Where there is a reasonable doubt as
to the degree of disability, such doubt will be resolved in
favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7. In
addition, the Board will consider the potential application
of the various other provisions of 38 C.F.R., Parts 3 and 4,
whether they were raised by the appellant or not, as well as
the entire history of the veteran's disability in reaching
its decision, as required by Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
In the evaluation of service-connected disabilities, the
entire recorded history, including medical and industrial
history, is considered so that a report of a rating
examination, and the evidence as a whole, may yield a
current rating which accurately reflects all elements of
disability, including the effects on ordinary activity.
38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41.
Where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
Review of the medical evidence of record reveals that the
appellant's liver enzyme levels were measured in October
1998, May 2000, and May 2001; no level was elevated. His
bilirubin level was normal as well. There is no evidence
that the appellant was treated for hepatitis. While the
appellant has indicated that he received vitamin B-12 shots
for his hepatitis, in fact he was receiving them because he
had a low level of B-12 in May 2000 (the May 2000 private
colonoscopy report includes a diagnosis of B-12 deficiency).
The appellant underwent a VA medical examination in November
2002. The appellant reported that subsequent to the original
episode of hepatitis, he had not had vomiting, hematemesis or
melena. He denied episodes of colic. He denied fevers,
nausea, vomiting and distension. The examiner stated that
there had been no treatment for liver disease. The appellant
stated that he had fatigue and generalized malaise due to old
age, arthritis, peptic ulcer disease, hearing loss, glaucoma,
vitamin B-12 deficiency and anxiety. He said that he
currently did not have any symptoms of liver disease and that
he had not had any recent weight loss or gain. On physical
examination, there was mild epigastric tenderness. There was
no guarding or rigidity or rebound. The liver size appeared
to be normal. The liver was nonpalpable. Muscle strength
appeared to be intact and there was no sign of muscle
wasting. There were no signs of chronic liver disease.
Liver enzyme levels were not elevated. The examiner stated
that the appellant had recovered uneventfully from the
original bout of hepatitis in 1945. The examiner also said
that the appellant was currently asymptomatic of any liver
disease and that the appellant without any residuals of
hepatitis.
The appellant has been assigned a zero percent disability
rating for his hepatitis that the RO has rated under
Diagnostic Code 7345. Under that Diagnostic Code, non-
symptomatic liver disease is evaluated as zero percent
disabling. A 10 percent rating requires that the disease be
productive of intermittent fatigue, malaise, and anorexia,
or; incapacitating episodes (with symptoms such as fatigue,
malaise, nausea, vomiting, anorexia, arthralgia, and right
upper quadrant pain) having a total duration of at least one
week but less than two weeks during the past twelve-month
period. A 20 percent rating is warranted if the disease is
productive of daily fatigue, malaise, and anorexia (without
weight loss or hepatomegaly), requiring dietary restriction
or continuous medication, or; incapacitating episodes (with
symptoms such as fatigue, malaise, nausea, vomiting,
anorexia, arthralgia, and right upper quadrant pain) having a
total duration of at least two weeks, but less than four
weeks, during the past twelve-month period. A 40 percent
evaluation is in order in cases of daily fatigue, malaise,
and anorexia, accompanied by minor weight loss and
hepatomegaly, or; incapacitating episodes (with symptoms such
as fatigue, malaise, nausea, vomiting, anorexia, arthralgia,
and right upper quadrant pain) having a total duration of at
least four weeks, but less than six weeks, during the past
twelve-month period. A 60 percent rating requires daily
fatigue, malaise and anorexia with substantial weight loss
(or other indication of malnutrition) and hepatomegaly; or
incapacitating episodes (with symptoms such as fatigue,
malaise, nausea, vomiting, anorexia, arthralgia, and right
upper quadrant pain) having a total duration of at least six
weeks, during the past twelve-month period, but not occurring
constantly. Finally, a 100 percent rating requires near
constant debilitating symptoms such as fatigue, malaise,
nausea, vomiting, anorexia, arthralgia, and right upper
quadrant pain.
In addition, a note following the rating criteria provides
that, for purposes of evaluating conditions under Diagnostic
Code 7354, an "incapacitating episode" means a period of
acute signs and symptoms severe enough to require bed rest
and treatment by a physician.
Following a review of the evidence of record, the Board finds
that there is no basis for an increased (compensable)
evaluation for the appellant's hepatitis. In reaching this
conclusion, the Board notes that there is no medical evidence
showing that the appellant has demonstrated clinical signs of
intermittent fatigue, malaise, and anorexia or incapacitating
episodes having a total duration of at least one week. The
appellant has consistently denied having experienced any
symptoms such as vomiting, anorexia or abdominal pain. Both
private and VA examinations have indicated that the appellant
has not demonstrated any stigmata of chronic liver disease.
There have been no elevations of liver function studies.
There is no evidence of any history of gastrointestinal
disturbance such as nausea or vomiting. The appellant's
abdominal pain has been attributed to his hernia repair and
his peptic ulcer disease. While the appellant has complained
of fatigue, he associated this fatigue with things other than
his hepatitis. In addition, no diagnosis or finding of
anorexia or hepatomegaly is of record and the appellant's
private treatment records do not reflect any concern about
hepatic symptoms or disease. In short, any liver disease is
asymptomatic to this point.
The medical evidence of record does demonstrate that the
appellant has complained of fatigue. Thus while at least one
of the requirements for a 10 percent rating are met, they are
not all met. The Board notes that this case is
distinguishable from the situation in Mauerhan v. Principi,
16 Vet. App. 436 (2002), where the United States Court of
Appeals for Veterans Claims (Court) found that the use of the
term "such as" in the rating criteria demonstrates that the
symptoms after that phrase are not intended to constitute an
exhaustive list, but rather are to serve as examples of the
type and degree of the symptoms, or their effects, that would
justify a particular rating. Here, the criteria enumerated
for the 10 percent rating are stated in the conjunctive, i.e.
intermittent fatigue, malaise, and anorexia. Therefore, the
Board notes that both fatigue and anorexia must be shown, or
incapacitating episodes between seven and fourteen days in
total duration during the previous year. See Melson v.
Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive
"and" in a statutory provision meant that all of the
conditions listed in the provision must be met]; compare
Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive
"or" requirement must be met in order for an increased rating
to be assigned]. Because the criteria required for a higher
(compensable) rating have not been shown, namely fatigue,
malaise and anorexia, or incapacitating episodes (with
symptoms such as fatigue, malaise, nausea, vomiting,
anorexia, arthralgia, and right upper quadrant pain) having a
total duration of at least one week but less than two weeks
during the past twelve-month period, the Board finds that
such a rating is not warranted.
Based upon the foregoing, the Board finds that the
symptomatology associated with claimant's hepatitis does not
warrant a rating in excess of the currently assigned zero
percent evaluation. The claim for a rating in excess of zero
percent for the hepatitis is denied.
Notwithstanding the above discussion, a rating in excess of
that currently assigned for the liver disease disability may
be granted when it is demonstrated that the particular
disability presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. See 38 C.F.R. § 3.321(b)(1).
The Board finds no evidence that the appellant's hepatitis
has presented such an unusual or exceptional disability
picture at any time so as to require an extraschedular
evaluation pursuant to the provisions of 38 C.F.R.
§ 3.321(b). The schedule is intended to compensate for
average impairments in earning capacity resulting from
service-connected disability in civil occupations.
38 U.S.C.A. § 1155. "Generally, the degrees of disability
specified [in the rating schedule] are considered adequate to
compensate for considerable loss of working time from
exacerbations or illnesses proportionate to the severity of
the several grades of disability." 38 C.F.R. § 4.1.
The Board finds that the schedular zero percent evaluation in
this case is not inadequate. As discussed above, the
diagnostic codes provide for higher ratings, but the required
manifestations have not been shown. The Board further finds
no evidence of an exceptional disability picture in this
case. There is no evidence of record showing that the
appellant has required any days of hospitalization for
treatment of his liver disease and there has been no
indication of incapacitating episodes of the kind
contemplated by regulation. The medical evidence of record
dated between 1998 and 2002 describe the appellant as
asymptomatic or without complaints and his fatigue and right
lower quadrant abdominal pain complaints have not been
related to his liver disease. Moreover, there is no evidence
of record that would render impractical the application of
the regular schedular standards. Consequently, the Board
concludes that referral of this case for consideration of the
assignment of an extraschedular rating is not warranted. See
Floyd v. Brown, 8 Vet. App. 88, 96 (1996); Bagwell v. Brown,
9 Vet. App. 337, 338-339 (1996). (When evaluating a rating
claim, it is well established that the Board may affirm an
RO's conclusion that a claim does not meet the criteria for
submission for an extraschedular rating pursuant to 38 C.F.R.
§ 3.321(b)(1), or may reach such a conclusion on its own.)
For the foregoing reasons, the Board finds that the
preponderance of the evidence is against the appellant's
rating claim. Since the preponderance of the evidence is
against this claim, the benefit-of-the-doubt doctrine does
not apply. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir.
2001).
II. Secondary service connection claims
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease occurred
in service. 38 C.F.R. § 3.303(d). In addition, a disability
that is proximately due to or the result of a service-
connected disease or injury shall be service connected.
38 C.F.R. § 3.310. The Court has held that the term
"disability" as used in 38 U.S.C.A. § 1110 should refer to
"any additional impairment of earning capacity resulting from
an already service-connected condition, regardless of whether
or not the additional impairment is itself a separate disease
or injury caused by the service-connected condition." Allen
v. Brown, 7 Vet. App. 439, 448 (1995).
Review of the appellant's private medical records reveals no
indicia of any causal linkage between the appellant's
currently diagnosed arthritis, colon polyps and/or gastritis
and his service-connected hepatitis. In May 2000, the
appellant underwent a colonoscopy and three polyps were
removed. The associated report reveals that the appellant
had diagnoses that included chronic right lower quadrant
pain, degenerative disc disease of the spine and B-12
deficiency. The doctor attributed the appellant's abdominal
pain to radicular pain from his arthritis of the spine. It
was noted that the appellant's prior colonoscopy had resulted
in no polyps being appreciated. Private medical records
dated between 1963 and 2001 are of record; nowhere in any of
these records is a finding of active hepatic disease or a
notation that any one of the appellant's various presenting
problems and conditions was etiologically related to liver
disease.
The Board finds that the preponderance of the evidence is
against the appellant's secondary service connection claims
for arthritis, colon polyps and gastritis. Nowhere in the
medical records in evidence is there found any clinical
notation suggesting that the appellant's arthritis or his
colon polyps or his gastritis was in any way linked to the
1945 bout of hepatitis that resolved with no residuals.
There is no competent medical opinion of record that provides
an etiologic link, whether by causation or by aggravation,
between the appellant's current arthritis, colon pathology or
gastritis and his asymptomatic hepatitis disability.
The Board has considered the appellant's written statements,
as well as the written statements of his representative,
submitted in support of his argument that his current joint,
colon and stomach disorders are etiologically related to his
hepatitis disability. To the extent that such statements
represent evidence of continuity of symptomatology, without
more, they are not competent evidence of a diagnosis, nor do
they establish a nexus between any acquired pathology and the
appellant's hepatitis disability. See McManaway v. West, 13
Vet. App. 60, 66 (1999).
The language of 38 C.F.R. § 3.310 requires consideration of
whether service-connected disability has made the claimed
disability chronically worse, even if the service-connected
disability did not cause the claimed disability. However, in
this case, there is no competent medical evidence of record
to suggest that the appellant's hepatitis disability has
either caused or aggravated any joint or colon or stomach
disorder. In fact, private doctors and a VA examiner have
not noted any clinical findings of any liver pathology. The
Board concludes, therefore, that the evidence does not
support the finding, in the sense that Allen represents, of a
nexus between the appellant's service-connected hepatitis
disability and any arthritis, or any colon or stomach
pathology. Likewise, the evidence does not support a finding
of any causal connection. The preponderance of the evidence
is therefore against the secondary service connection claims
for arthritis, colon polyps and gastritis.
For the foregoing reasons, the Board finds that the
preponderance of the evidence is against each of the
appellant's three secondary service connection claims.
Because the preponderance of the evidence is against each one
of the appellant's claims, the benefit-of-the-doubt doctrine
does not apply. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed.
Cir.).
ORDER
A compensable evaluation for the appellant's hepatitis is
denied.
Service connection for arthritis, colon polyps and/or
gastritis is denied.
REMAND
After the appellant received notice of a January 2004 rating
decision that denied his claims for service connection for
eye and foot disorders, he expressed disagreement with the
February 2004 notice letter (320/214A/MAT) of the denial in a
handwritten letter submitted later that same month. The
claims file does not contain any Statement of the Case (SOC)
issued in response to the appellant's February 2004 Notice of
Disagreement (NOD). The Board must therefore remand that
issue for the issuance of an SOC. See Manlincon v. West, 12
Vet. App. 238, 240 (1999).
The VCAA eliminated the concept of a well-grounded claim and
superseded the holding of Morton v. West, 12 Vet. App. 477
(1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S.
Vet. App. Nov. 6, 2000) (per curiam order), which had held
that VA could not assist in the development of a claim that
was not well grounded. Section 7(b) of the VCAA states that,
in the case of a claim for benefits finally denied as being
not well grounded between July 14, 1999 and November 9, 2000,
the claim can be re-adjudicated upon the request of the
claimant or the Secretary's own motion as if the denial had
not been made.
In April 1999, the RO denied the appellant's claim for
service connection for dermatophytosis, claimed as a fungal
disorder, based on a determination that the claim was not
well grounded. The appellant was notified of the denial on
May 3, 1999, but he never appealed that rating decision. The
April 1999 rating decision is therefore final with respect to
the claim of service connection for dermatophytosis.
38 C.F.R. §§ 20.302, 20.1103 (1998). The April 1999 rating
decision, therefore, represents the last final action on the
claim of service connection for dermatophytosis. Glynn v.
Brown, 6 Vet. App. 523 (1994). Thus the Board finds that
that final denial of the appellant's October 1993 claim for
service connection for a fungal disorder does not meet the
criteria of section 7(b).
In December 1998, the RO found that the dermatophytosis claim
fell within the timeframe delineated by the VCAA and re-
adjudicated it anew. However, the RO overlooked the fact
that April/May 1999 is outside of July 14, 1999 to November
9, 2000. Consequently, further action to address the
dermatophytosis claim as a claim to reopen should be
undertaken. See Barnett v. Brown, 8 Vet. App. 1 (1995).
It is clear from the record that the appellant was never
notified of the need to submit new and material evidence with
respect to the dermatophytosis claim, especially in light of
the fact that the RO never considered the issue in terms of a
claim to reopen. The Board, however, is required to consider
whether the appellant has submitted new and material evidence
warranting reopening of the claim before the Board may
consider it on the merits. 38 U.S.C.A. § 5108; Barnett v.
Brown, 8 Vet. App. 1 (1995). The Court has indicated that
when the Board addresses a question not considered by the RO,
the Board must consider whether the claimant had notice of
that issue. Barnett, at 5; see Curry v. Brown, 7 Vet. App.
59, 66 (1994). The Board is of the opinion that, as the
appellant has had no notice as to the need to submit new and
material evidence, further procedural development is
required.
In addition, records generated by military facilities that
may have an impact on the adjudication of a claim are
considered constructively in the possession of VA
adjudicators during the consideration of a claim, regardless
of whether those records are physically on file. See Dunn v.
West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2
Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must
obtain outstanding federal records, which may well contain
significant medical findings and conclusions. See
38 U.S.C.A. § 5103A(b-c); 38 C.F.R. §§ 3.157(b)(1), 3.159(c).
The appellant's complete service medical records are not in
evidence. Specifically, the medical records associated with
the appellant's October 1950 to September 1951 Army service
are not of record. As such, the VA is on notice of records
that may be probative to the claim. See Robinette v. Brown,
8 Vet. App. 69 (1995). The appellant's service medical
records are government records that need to be obtained.
Accordingly, this case is REMANDED for the following:
1. The RO must review the claims file
and ensure that all notification and
development actions required by
38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002 & Supp 2005) are fully
complied with and satisfied. See also 38
C.F.R. § 3.159 (2005). In particular,
the RO should notify the appellant of the
information and evidence yet needed to
substantiate a claim to reopen
entitlement to service connection for
dermatophytosis and of what part of such
evidence he should obtain and what part
the RO will yet attempt to obtain on his
behalf. The appellant should also be
told to submit any pertinent evidence in
his possession that has not been
previously submitted.
2. The RO should take appropriate steps
to secure the Army medical records or
alternative records for the appellant's
second period of service through official
channels or any other appropriate source,
including the appellant, and the National
Personnel Records Center (NPRC). These
records should be associated with the
claims file. If there are no records,
documentation used in making that
determination should be set forth in the
claims file.
3. The RO should contact the appellant
to obtain the names and addresses of all
medical care providers who have treated
him for any fungal disorder since
service. After securing the necessary
release(s), the RO should obtain those
records that have not been previously
secured. To the extent there is an
attempt to obtain records that is
unsuccessful, the claims file should
contain documentation of the attempts
made. The appellant and his
representative should also be informed of
the negative results, and should be given
opportunity to submit the sought-after
records.
4. After undertaking any other
development deemed appropriate, the RO
should re-adjudicate the claim remaining
on appeal. The RO should determine
whether the additional evidence submitted
is new and material as to the issue of
service connection for a fungal disorder.
In determining whether new and material
evidence has been submitted, the RO
should determine whether the evidence
secured or presented
since the last final decision (April
1999) is new and material when viewed in
the context of all the evidence, both old
and new, presuming the credibility of the
new evidence. See Evans v. Brown, 9 Vet.
App. 273 (1996); Justus v. Principi, 3
Vet. App. 510 (1992).
5. If new and material evidence has been
submitted, the RO should reopen the claim
and re-adjudicate it. The re-
adjudication should reflect consideration
of all the evidence of record and be
accomplished with application of all
appropriate legal theories, statutes and
regulations. (If any additional
development, such as the scheduling of a
skin examination, or the obtaining of a
medical nexus opinion, is necessary to
adjudicate the issue, especially in light
of any newly received treatment records,
that development should be accomplished.)
6. If the benefit sought on appeal
remains denied, the appellant and the
appellant's representative should be
provided a Supplemental Statement of the
Case (SSOC). The SSOC must contain
notice of all relevant actions taken on
the claims for benefits, to include a
summary of the evidence and applicable
statutes and regulations (prior and
current) considered pertinent to the
issues remaining on appeal, including
38 C.F.R. § 3.156. The appropriate
period of time should be allowed for
response.
7. The RO should re-examine the
appellant's claims pertaining to service
connection for glaucoma and cataracts,
claimed as "eye problems" and
astigmatism; and "bilateral foot
problems." If no additional development
is required, the RO should prepare an SOC
in accordance with 38 C.F.R. § 19.29
(2005), unless the matter(s) is/are
resolved by granting the benefit(s)
sought, or by the appellant's withdrawal
of the NOD. If, and only if, the
appellant files a timely substantive
appeal, should those issues be returned
to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The appellant is hereby notified that it is his
responsibility to report for any scheduled examination and to
cooperate in the development of the case, and that the
consequences of failure to report for a VA examination
without good cause may include denial of the claim.
38 C.F.R. § 3.655.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs